Motherhood, Apple Pie And The Trump Foundation

Protest sign from the Women's March on NYC, January 2017. Photo by Mathias Wasik.

In case you don’t know very much about New Yorkers and their state, here is a list of random facts that can give you a pretty good sense of the place even if you have never been there.

Most New Yorkers have, or have had, mothers.

New York state is the second-largest producer of apples in the nation, behind Washington. (Apparently, for a state to be a top-notch producer of apples, it is necessary to share its name with a major city.)

Most New York voters are Democrats. Related fact: All current statewide elected officeholders are Democrats.

President Donald Trump is a New Yorker who is not currently a Democrat. Hillary Clinton, whom he defeated in order to become president, is a New Yorker when it is a convenient career move but always a Democrat. Her husband, former President Bill Clinton, is a New Yorker who will never talk like a New Yorker. He was once a New Democrat, which was a Democrat except when it was convenient to act like a Republican.

Barbara Underwood is New York’s accidental state attorney general. Like most New Yorkers, she is a Democrat. She became attorney general after her fellow Democrat and predecessor, Eric Schneiderman, resigned in disgrace amid reports that he likes to nonconsensually smack women around. Schneiderman has denied nonconsensual smacking. He has not denied being a Democrat.

New York voters may revere motherhood and apple pie as much as most other Americans, although I have no concrete evidence for stating this as fact. I do have mountains of anecdotal evidence indicating that however much New York voters may revere motherhood and apple pie, they revile President Trump more.

President Trump established a charitable foundation in 1988. It was not especially large as such foundations go, and it was initially funded primarily by Trump himself, along with his companies. It was subject to the jurisdiction of New York’s attorney general, who never paid any evident attention to this foundation prior to Trump’s election as president.

Bill and Hillary Clinton established a charitable foundation many years ago, although not as many years ago as Trump. It was vastly larger than the Trump Foundation, however, aided by contributions from donors foreign and domestic, many of whom sought to win the gratitude of a former president and a senator and cabinet officer who twice came reasonably close to becoming president herself. The Clinton Foundation likewise is subject to the jurisdiction of New York’s attorney general.

When he was not allegedly smacking women around during his tenure as attorney general (he has never denied being attorney general), Schneiderman was diligently positioning himself to run for higher office. Part of that positioning was to oppose President Trump in every conceivable manner, which included launching an investigation of the Trump Foundation’s activities the month after Trump’s election.

The Clinton Foundation has never attracted any serious scrutiny from New York’s attorney general, so far as is publicly known.

Underwood inherited Schneiderman’s investigation of the Trump Foundation when she accidentally became attorney general. Yesterday she filed a civil lawsuit alleging that the Trump Foundation operated outside the law by, among other things, making disbursements to charities in furtherance of Trump’s political aspirations.

Private foundations exist for the sole purpose of making disbursements to charities. They are often established to further the public image or aspirations of their founders. Such reputational benefits have not generally been found to be illegal self-dealing or inurements to the benefit of the founders.

Underwood seeks, among other things, the dissolution of the Trump Foundation. Trump has been trying to dissolve the foundation since shortly after his election, but was not permitted to do so because of Schneiderman’s investigation, which occurred when he was not smacking women around, which he has denied doing.

Underwood’s lawsuit also alleges that in some circumstances the Trump Foundation made payments toward obligations that were personal to Trump, or in furtherance of his political goals and in coordination with his campaign. Some of those actions, if proven, could constitute violations of campaign finance laws or the laws governing the operation of charities. These violations are usually dealt with via the tax code or the Federal Election Commission, and not in a proceeding to dissolve a charity that is actually making charitable distributions. The attorney general does not usually seek to eliminate sources of charitable funding. It is also highly unusual for the New York attorney general to seek to bar wealthy individuals from engaging in charitable endeavors (by serving on any charity’s board) for a period of 10 years, as Underwood is doing.

The Clinton Foundation has been publicly reported to have engaged in many actions arguably at least as favorable to the Clintons’ political objectives, including the employment of members of the Clinton political team. As noted above, neither Schneiderman (when he wasn’t either smacking women around or not smacking women around) nor Underwood is known to have engaged in any investigation of any Clinton Foundation activities that might have been impermissibly political.

Underwood, who is 73, has said she is not interested in seeking election to the office she accidentally inherited from Schneiderman. There is no reason to believe she brought the lawsuit against Trump to position herself for higher office. However, this does not necessarily lead to the conclusion that she is acting without fear or favor in her civil prosecution of President Trump and his family.

Underwood became the Principal Deputy Solicitor General of the United States during the administration of President Bill Clinton. When he was succeeded by President George W. Bush, she became acting Solicitor General until a Bush nominee was confirmed. In that manner – also more or less by accident – she became the first female Solicitor General in United States history.

Nothing prevents the New York attorney general from according similar scrutiny to the Clinton Foundation as is being applied to that of Trump. But, although I lack evidence to support this statement as fact, it is safe to say that Bill Clinton will start talking like a New Yorker before that happens.

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